Morrison v. Green

23 S.E. 845, 96 Ga. 754

• Court: Supreme Court of Georgia
• Decided: April 8, 1895
• Status: Published

Opinion

Simmons, C. J.

Although, according to the decision of this court in. the case of Fry et al. v. Calder et al., 74 Ga. 7, an attorney at law who successfully defends a suit for the foreclosure of an alleged lien, has himself a lien for his fee upon the property of his client which the plaintiff sought to subject, the attorney’s lien is inchoate until a judgment in favor of the defendant has been actually rendered; and as the policy of the law favors the settlement of litigation, a defendant against whose property an alleged lien is sought to be enforced may settle with the plaintiff at any time before judgment; and when this is done the case will not be retained in court to allow the defendant’s attorney an opportunity to establish a lien for fees by making a successful defense. A fortiori, it follows that if such a case resulted in a judgment for the plaintiff, and the defendant’s attorney brought to this court a bill of exceptions alleging error in the overruling of a motion for a new trial, the plaintiff in error has the right to dismiss the writ of error over the objection of his attorney.

April 8, 1895.

Brought forward from the last term.

Motion to dismiss writ of error.

With the motion counsel for defendants in error presented written instructions of plaintiffs in error to their counsel, and to the clerk of this court, that the bill of exceptions be withdrawn or dismissed, declaring that they did not wish to prosecute the case further. The motion was resisted on the ground indicated in the headnote.

W. L. Eakin and R. J. & J. McCamy, for plaintiffs in error. McCutchen & Shumate and Payne & Walker, contra.

Writ of error dismissed.